Standing Committee A

[Mr. David Taylor in the Chair]

Gender Recognition Bill [Lords]

Schedule 4 - Effect on marriage

Amendment proposed [11 March]: No. 42, in 
page 26, line 27, leave out from 'clergyman' to 'reasonably' in line 28 and insert 
 'or any minister of a recognised religious body is not obliged to permit the marriage of a person to be solemnised in the church, chapel or other religious building of which he or she is a minister, if the minister'—[Andrew Selous.] 
 Question again proposed, That the amendment be made.

David Taylor: I remind the Committee that with this we are discussing the following:
 Amendment No. 43, in 
schedule 4, page 26, line 34, at end insert— 
 '(3) A registrar of births, marriages and deaths is not obliged to solemnise the marriage of a person if the registrar reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004.'. 
Amendment No. 45, in 
clause 22, page 9, line 37, at end insert— 
 '( ) the disclosure is made within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.'. 
New clause 5—Religious bodies— 
 'Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.'.

Tim Boswell: To date, the Committee has been characterised by a degree of temperance in its discussion of these difficult issues and also by a degree of sensitivity to the individuals involved. I do not think that anybody has paraded partisanship of either a party or a denominational nature. As far as I am concerned, long may that continue.
 In relation to the Christian faith in particular, it is clear that there are sincerely held views on both sides of the argument about whether the Bill is acceptable in principle. There is also a good deal of concern about the practicalities of its operation. My hon. Friend the Member for South-West Bedfordshire (Andrew Selous) has performed a service to the Committee in bringing forward his concerns frankly with this group of amendments. 
 It is particularly germane to the clause to declare my personal interest: I am a practising Anglican. My wife and I were married under the rites of the Church in 
 Wales, because she comes from Wales. My mother-in-law, who is still with us, successively married two clergymen of the Welsh Church. After the death of my wife's father, her stepfather, who, sadly, is no longer with us, solemnised our marriage in Wales. I am sorry that the hon. Member for Ogmore (Huw Irranca-Davies) is not here this morning, as he was taught by my mother-in-law at school in her spare time from those other involvements. I am sure that both benefited from that. His contributions in Committee have been positive. I mention that because I have both an Anglican and, specifically, a Church in Wales interest in the matter. 
 Two general points lie across my hon. Friend's amendments. I have been reflecting on them over the weekend. The first is that there can be no absolute licence in the Bill for ministers of religion or anybody else. I do not wish to caricature my hon. Friend, because he is not asking for that. Indeed, the Minister will remember that, on Second Reading, I decided to trawl back to my extremely limited memory of Hardwicke's Marriage Act 1753, in which Parliament imposed severe penalties on the clergy over the regulation of marriage. Saying, ''I am a clergyman''—or a minister of any faith or denomination—''and I wish to do exactly as I think fit'' may be true under God, but it is not necessarily true under the law. I do not think that it would be reasonable for us to expect that. 
 That is, of course, subject to an important caveat. I think that it is a general principle of all members of the Committee that we should not restrain the exercise of people's sincerely held, faithful beliefs or the practice of their religion unless there is an absolute or overriding reason to do so. We should not put them in difficulty because of views that they hold or responsibilities that they assume under that religion. The Minister will know the European convention on human rights better than I, but I am sure that if we were to restrain religious practice, we would get into difficulty under another Act. 
 It is not unthinkable that Churches must be regulated under the law. Indeed, that point almost came up during the debate about the conduct of Churches, and the Minister will be familiar with it. There have been some problems with accountancy—which is not a matter of faith—in some of the charismatic Churches. Those have, quite properly, had to be dealt with under the law. Clearly we should allow people, particularly ministers of religion, doing their job in good faith and decently, as much opportunity as we reasonably can to carry that out. 
 My second point—again it is not intended to subvert my hon. Friend's argument, but to qualify it—is that it is quite difficult in law to stop people suing other people. As constituency Members of Parliament, we are familiar with somebody writing to us and assuming that we will immediately promote a case for them in the European Court of Human Rights about some aspect of their human rights. If that is unpacked, it is shorthand for saying, ''I've had a rough time and somebody ought to put it right for me. I think I know 
 my rights.'' One may or may not. Simply finding a public interest body that wants to promote such a case is quite difficult, expensive and fraught. 
 I am not asking the Minister to guarantee that under the Bill there will never be litigation against Churches, denominations or ministers of religion. It would be difficult to sustain that argument. However, we can quite properly ask him for assurances that ministers going about their work in good conscience and good faith, and in the interests of their parishioners, will not find themselves in unreasonable difficulty. That is why, particularly given the correspondence that I suspect all members of the Committee will have received from constituents and others, and the concerns that have been expressed by my hon. Friend, we need to look long and hard to determine whether a balance is struck and to check that people will not be unfairly penalised for doing their job or following their conscience. There must be a specific reason for them to be penalised. 
 Having reviewed my hon. Friend's amendments, I find my enthusiasm for them unequal. However, the points that he makes are all very serious and need handling. If the Minister cannot respond to them now, we may need to respond to them at a later stage—indeed, sadly, the last stage—to try to get this right. I accept the Minister's good faith. Clearly, he wants to get things right. As he knows, I support the general principle of the Bill, and I hope that he deals with this matter. 
 There is one other point that should inform everybody's consideration of the issue. It has been made strongly in my representations. People, including members of faith communities, strongly want to welcome transgendered individuals. They wish to extend Christian charity to them and to treat them properly. 
 Having made those general remarks, I turn specifically to my hon. Friend's amendments. Amendment No. 42 is about the clergy's obligations to marry people. I want to deal with two matters. There appears to be an asymmetry between the reliefs for the clergy in the Church in Wales, and those for the clergy in the Church of England, which remains the established Church. It appears that a clergyman in the Church of England is relieved of his obligation, which I understand is under public law—the Minister is nodding—to solemnise the marriage of a person if he 
''reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act''. 
However, 
 ''A clerk . . . of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is a minister''. 
That wording is clearly carefully considered and appears to have a slightly different effect. 
 My understanding is that English clergymen—I hope that I can use that shorthand, although there will be many clergymen who have come across the border; clergymen can transfer throughout the Anglican communion, as the Minister well knows—are relieved under the Bill of their obligations under public law to marry some people. The issue arises of the church, of 
 which one might be the incumbent or the priest in charge, where the marriage might take place. It seems that there is a possible advantage or greater flexibility for Welsh clergy in their practice over the border. An English clergyman would be able to say, ''I'm sorry. I cannot in conscience marry you.'' He may also say that to persons who have been divorced, but that is a separate issue. A Welsh clergyman might be able to say, ''I am not going to marry you, but I am also going to make sure that my church cannot be used for your marriage.'' I can envisage some difficulties of Church order in relation to that distinction. The Minister will be aware—I mean our Minister, the hon. Member for Tottenham (Mr. Lammy). I had better say that for the avoidance of any confusion.

Andrew Selous: Give him a dog collar.

Tim Boswell: I know that the Minister used to be a choirboy in the cathedral in my constituency, so there are lots of connections in this debate. I shall now get back to the point. In England, someone may not permit a marriage that they would have to carry out, but may not be able to prevent a marriage from taking place in their church.
 The Minister knows that in some parishes in England—one is near where I live—there are strong reservations on the quite separate issue of women priests. There is a particular view about Church order and practice—I am talking about the Anglican Church. Those parishes may not wish to have Church order disrupted behind the incumbent's back, as it were. It is important for the Minister to explain the basis for that apparent distinction. Why is the apparent advantage extended to the Welsh clergy not extended to the English clergy? Is there no material difference?

Andrew Selous: I should like briefly to illustrate my hon. Friend's point. On Sunday, I was talking to a Church of England clergyman at a church in Fulham. His response was that he would generally welcome transsexual people into his church, and I was delighted to hear that. On telling him that he would not have the power to prevent the marriage in his church of two people that he and his congregation believed to be of the same sex, he became very distressed. He was very unhappy about that provision. There is a lack of understanding of what the Bill entails among the clergy of the Church of England. Once it is explained to them, there will be considerable concern for congregations.

Tim Boswell: My hon. Friend encapsulates the concerns of the debate. As I have made clear on previous occasions, including on Second Reading, for the Bill to succeed in its objective of helping transgendered people, it is important that the maximum degree of public acceptability and welcome is achieved, and that concerns are properly dispatched. I say to the Minister in all seriousness that there appears to be an unevenness in the provisions. I have
 examined advice from ecclesiastical lawyers on the matter. They are concerned about the matter, too, and it needs clearing up.
 There is the wider issue of the obligations of ministers and what they are allowed to do in the conduct of marriages. My hon. Friend has cited the remarks of the right hon. Member for Blackburn (Mr. Straw) while Home Secretary, which might have given rise to the suggestion that marriages performed by religious ministers were generally public duties, subject to public law. The Minister will no doubt remind the Committee that the legislation does not bite on goods and services, but it might do so if there were an overriding public obligation. Indeed, he has had to exempt Anglican clergy in England or Wales because there is a public obligation under public law. 
 Will the Minister confirm that it is the Government's view that all ministers of religion—non-conformist ministers, Roman Catholic priests and ministers of other faith communities—have no obligation to marry two persons, one of whom is transgendered, if they in conscience do not wish the marriage to take place? It is a private decision, with which I do not agree, but it is important that the individual should have that right. It is important because of what the then Home Secretary said and the general state of uncertainty in the law on the matter. 
 A related matter concerns the questions that a minister is entitled to ask when preparing persons for marriage. When two persons present themselves for marriage, I take it that the minister is entitled, either on an impression that he has formed or on unprotected information that he has received, and obviously if the parties talk about it, at least to ask, ''Is either of you a transgendered person?'' We will come to the disclosure of protected information, but I understand that he is not entitled to disclose it to other people, but can say, ''Before I marry you or even consider marrying you, I need to know whether one of you is a transgendered person.'' It would be helpful if the Minister clarified that on the record. 
 I am probably anticipating the point that my hon. Friend will make, but the situation becomes more difficult if persons are dishonest or refuse to reveal information and the minister is not aware of it. No moral blame should be attached to clergy and they should not reproach themselves, but it is not a matter for law or for the Committee. 
 My hon. Friend's amendment No. 43 encapsulates a separate issue about the duties of registrars. The Minister is aware that registrars operate under civil law, and it would be impertinent and inappropriate of me to suggest that they do not have to have a conscience, but their job is to carry out the requirements of civil law whatever their personal faith may lead them to do. In carrying out those requirements, their personal faith may not always be coincident with their legal obligations as a registrar. 
 I can imagine a registrar having strong reservations about divorce; I can imagine no situation in which a registrar could carry out civil duties by refusing to conduct civil marriages for divorced persons. 
 However, the area under discussion is more specialised; it is one in which we must establish public acceptability to the full. 
 I have corresponded with the Society of Registration Officers over the concerns expressed by the right hon. Member for Swansea, East (Donald Anderson) on Second Reading about registrars who might find themselves in moral difficulty when conducting or being asked to conduct a marriage involving a transgendered person. I have not received a response from the society; I might before Report but the time scale has not made it possible to get a formal response yet. I hope that the Minister will assure the Committee that he will consider the matter and that, if there were a conscientious objection, arrangements could be made for an individual registrar to stand down without incurring disciplinary action. That would provide, dare I say it, a third way between my hon. Friend's amendment and what is implied in the Bill. 
 Amendment No. 45 is about the disclosure of information. I shall stand back at this stage—I am sure that the Committee will be relieved—and reserve whatever I may want to say for a later clause. I shall not engage on the matter now, except to say to my hon. Friend that the best of all situations would be one in which individuals were prepared to give consent for release of the information. That is the overriding position. Things would be much easier all around. I understand the sensitivities, but, even within private deliberations, there must be some consideration of the extent to which information may properly be released and an understanding of the basis on which consent is given. 
 I shall reflect on what the Minister says on new clause 5. As I said at the beginning of my remarks, there cannot be absolute absolution—if I may use that phrase—in civil law for the practices of faith communities. They certainly have obligations in respect of acts of discrimination and a moral duty to welcome individuals as individuals, whatever their status or legal gender. 
 Nevertheless, in anticipating the Minister's reply, I stress that he must show sensitivity to the issue, which has generated a great deal of correspondence and concern—and, perhaps, some misconceptions. We must satisfy and put at rest those concerns before concluding our deliberations. I hope that faith communities will be allies in the decent treatment of transgender people and that we can avoid the creation of hard cases, which would make such a process more difficult.

Evan Harris: This is an interesting group of amendments, and we should welcome the fact that the hon. Member for South-West Bedfordshire raised the issues. It is only right that this House should debate them, even though they are controversial and raise people's hackles. The hon. Gentleman should be applauded for tabling the amendments and for the style in which he discussed them. I profoundly disagree with him, but I strongly support his right to fight his corner.
 Amendment No. 43 would provide an opportunity to a registrar whose job it is to conduct civil marriages not to do their job. That cannot be allowed. It is their job to conduct civil marriages. On that basis, as the hon. Member for Daventry (Mr. Boswell) said, registrars could be allowed not to perform a civil marriage for people who although lawfully permitted to marry have been divorced or if he believes that they have had sex before marriage. It is not right for the hon. Member for South-West Bedfordshire to make a distinction between those conditions, as the principle is the same. Registrars must do their job. We are talking about civil marriage. If a registrar wants to marry people only after making judgments about their history, he should get involved in religious marriages—not civil marriages, which are part of the job of the state. My hon. Friend the Member for Teignbridge (Richard Younger-Ross) agrees with that and has provided me with information to help me make this point. 
 The hon. Member for South-West Bedfordshire drew an analogy between the opt-out that he proposes for registrars and that of doctors on abortions, but there is a difference. Basically, the only job of a registrar is to conduct civil marriages. If they refuse to do that, they refuse to do their job, whereas doctors who might be asked to perform abortions do other jobs for the NHS. Abortions are unlikely, almost by definition, to be a significant part of their job description. Therefore, the issues are different. I do not understand how the Government would be able to defend themselves against a claim of discrimination in respect of the right to civil marriage if people were put through hoops simply on the basis of their transgendered status. The case for amendment No. 43 has not been made at all. 
 Amendment No. 45 is about disclosure. Clearly, disclosure would be allowed if consent were given for it. That is the point that some of us were seeking to debate with the hon. Member for South-West Bedfordshire. Otherwise, it is absolutely right, as with my analogy about the abortion history of someone who was talking to their priest or minister, that people expect confidentiality in personal matters involving their medical history or, indeed, social history. If anything, the tradition of the confessional is that people expect greater confidentiality than in many other circumstances. It would be astonishing if the law provided for a breach of that confidentiality without consent in these of all circumstances.

Andrew Selous: I do not expect the hon. Gentleman to agree, but does he at least accept that if, in a wedding in a religious congregation, the minister was aware that one party to the marriage was a transgendered person but the other party was not so aware, the minister would have a strong moral obligation to reveal that? That may be far-fetched, but I refer to the case of Sam Kane. Hon. Members are familiar with it, so I shall not go into the details but they will realise that such circumstances could arise.

Evan Harris: No, I do not think that it is the job of a clergyman to do that, and I am not keen to go down that path. The hon. Gentleman is free to challenge the Minister on that.
 There are many presumptions, but a doctor is allowed to breach confidentiality only when someone else's welfare is likely to be seriously damaged, as when people propose to drive when they are not fit to do so, or when there is a significant threat to the health of someone in the household—and even then the representation must be made to the person concerned rather than to a third party. The hon. Gentleman cannot found his case even on the specifics of the example that he gave, and I do not think that he could make a wider case for permission to disclose on the basis of that example, which is questionable in and of itself. 
 The drafting of new clause 5 gives it own answer. It states: 
 ''Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.'' 
Legislation always prejudices the rights of people to act as they wish. The Race Relations Act 1976 prevents people who might claim that their religion permits or requires them to discriminate on racial grounds from doing so. The principle is that plenty of Acts 
prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.'' 
I said earlier that a balance must be struck. I believe in laissez-faire; there must be good reason to interfere with an individual's religious practice. Protecting the rights of others and preventing them from being discriminated against in their own rights of association or access to religious belief or civil rights is one of those areas.

Andrew Selous: I am sure that the hon. Gentleman will accept that, as a member of the Conservative party, I am terribly discriminated against by not being able to apply for a job at the Liberal Democrat party headquarters. I am rightly and properly discriminated against in a way that I and all of us accept in the context of political parties. Why should there be favouritism elsewhere? I would have thought that the hon. Gentleman, of all people, believes that religion is a private matter. Is he not becoming heavy handed with the law in that respect?

Evan Harris: The hon. Gentleman uses an example about employment. There are specific provisions concerning employment discrimination which allow for protection on grounds of genuine vocational qualifications. I do not know where political parties come into that, but in terms of religious bodies the new regulations are very clear. Religious bodies are entitled to discriminate on the grounds of religion only when there is a genuine vocational reason for someone to share religious beliefs to work in that area. It is a controversial area and I do not think that the
 Government have got the balance right, but at least we are having the same debate. I do not think that the hon. Gentleman is having the same debate.
 I hope that I have dealt with the point that there is a balance in every setting. We do not tolerate room for manoeuvre when it comes to racial discrimination, but we tolerate some room for manoeuvre when it is felt that there is a genuine vocational requirement for a specific set of beliefs. The statement that 
 ''Nothing . . . shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with the ethos and beliefs'' 
is wrong in the context of accessing civil rights and, indeed, the right of association. There should be a presumption, but there should also be specific grounds when it is wrong that they should be entitled to discriminate in so doing. A balance must be found, and I think that the Bill gets the balance about right, although I have some reservations about the terminology of the schedule. 
 Amendment No. 42 would give a Church of England minister the right to veto other ministers conducting a religious wedding. That would go beyond their own right to conscientiously object. It seems to me that that is wrong. If we accept that it is a personal matter for an individual, just because one clergyman does not want to conduct a wedding on the grounds of conscience, we should not give that clergyman the right in law to prevent another clergyman from carrying it out in accordance with their conscience in the same building. 
 The hon. Gentleman's concerns about the tainting of the building are not right—I apologise if those were not his words. In my constituency the Church owns a room that is available for hire to public bodies and the Church in question was happily hiring it out to a local lesbian and gay group working in support and training relating to HIV. At some point, a member of the congregation found out what was going on and complained to the elders or the council, which decided that that group would no longer be permitted to use the room. The group asked on what basis it was being discriminated against and the Church apparently said that the room would have been tainted by its use by that group of people the previous evening. The city council, rightly, decided to withdraw its block bookings of that room. We should not give permission in law for such discrimination to be permitted in the established Church. Disestablishment, which I and my party support, would deal with such problems in a different way, but we have an established Church. It has responsibilities and the law should not be changed to permit such block exemption. 
 I urge the Minister to reject the amendments.

David Lammy: As the Committee knows, the conscience clause in the Bill frees ministers of the Church of England and the Church in Wales from their obligation to solemnise the marriages of parishioners. The conscience clause applies when a minister of religion knows or reasonably believes that one of the parties to the marriage is recognised in the acquired gender. The
 hon. Member for Daventry asked whether that permitted the minister to ask, ''Are you a transgendered person?'' The minister is free to ask that question. Indeed, there may be an application form on which he can ask it. I understand that that is the practice among many Churches; it certainly is in my own. However, the minister cannot then disclose that information to whomever he or she wishes. I shall come to that point later.

Tim Boswell: It would be helpful to the Committee—if not now, perhaps in correspondence before Report—if the Minister would further explain that matter. In clause 22(3), for example, it is not absolutely clear whether a clergyman, Anglican or otherwise, who asked that question would be performing a public office and therefore caught by the duty of confidentiality. I presume that the Minister wishes them to be.

David Lammy: I shall go on to explain those points.
 Clause 11 does not refer to ministers of other religious bodies, as they do not have a duty to solemnise marriages and the Government do not believe that the Human Rights Act 1998 creates such a duty.

Andrew Selous: We are going over old ground. The Minister knows that the Secretary of State for Foreign and Commonwealth Affairs disagrees with him. Lord Filkin and many lawyers advising Church organisations with whom I have been in touch say that there might be a duty. The Minister has an opportunity to get rid of real legal doubt this morning. I had hoped that he would think the matter non-controversial and would take this opportunity to clarify it.

David Lammy: I shall make some progress. The simple point is that the Bill is about gender recognition. It does not extend the law either way. If someone who is transsexual seeks to bring a claim against a religious organisation, their position will be the same after the Bill is enacted as it is now. Because of the religious exception, to which there has been vague reference, under the European convention on human rights—or article 9 of the 1998 Act as it has been incorporated—the Government do not believe that such an action would be successful. I may come to that later.
 We worked closely with Church of England officials and the noble prelate, the Bishop of Winchester, on the clause. It was amended in another place to accommodate the concerns of the Church of England, which has assured us that it is not necessary to give their ministers the right to refuse to solemnise such marriages in their churches, to answer the point made by the hon. Member for Daventry. The protection has been given to the Church in Wales, at its request, but the Church of England has said clearly that it does not want it. 
 Let me read a section of a letter from the Bishop of Winchester to Lord Filkin, who is a Minister in my Department. It states: 
 ''That is particularly important because I had hoped to have the opportunity to pay tribute to the very constructive and helpful way in which you and your staff have worked with the Church of 
England over this matter. I know the staff at Church House would wish to be associated with this and would wish me to convey their own thanks. 
 We have been able to improve the Bill, in particular in relation to the duty of clergy to solemnise marriages where they reasonably believe that one of the couple has undergone the gender recognition certificate process under the Bill. The issues in this area have clearly been causing concern among clergy and others; I am to answer a question about it at the meeting of the Synod this week''. 
We have made progress on the matter.

Tim Boswell: The Minister has confirmed my suspicion that there is a difference in operation of the terms for English and Welsh clergy. He has gone on helpfully to explain to the Committee that that is because they have made separate requests for protection. I would like to share with the Under-Secretary a legal opinion:
 ''Indeed it could be argued that by making a special concession to the consciences of Welsh clergy the Bill discriminates against English clergy and their congregations in terms of the Human Rights Act. There is no space to go into the issue in detail here, but again this anomaly in the Act seems to be sowing seeds for future dissent and unnecessary litigation.'' 
Would the Under-Secretary reflect further on the matter?

David Lammy: As I said, we discussed the matter at length with the Church of England and the Church in Wales because they have duties to solemnise marriages. The Church of England took a slightly different position on the point to that of the Church in Wales. Our obligation was to work with those Churches because they have legal obligations.

Andrew Selous: I am now a member of a Baptist Church that is democratic, where power flows from the bottom up. The Church of England is not like that. It is hierarchical and very top-down in its structure. I wonder whether the Under-Secretary will reflect on the matter. The Church of England clergyman to whom I spoke on Sunday was very concerned. He was a good man, who wanted to welcome transsexual people into his congregation, but he was genuinely concerned on this point. I do not think that the Under-Secretary is reflecting on that. Why is he causing needless offence through the clause?

David Lammy: We are not seeking to cause needless offence. We are merely setting out the arrangements for those Churches that have legal obligations. I say to Christian communities—this point was alluded to this morning—that it has been suggested that other religious organisations could be sued under the Human Rights Act if they refuse to marry transsexuals. Of course the Government cannot rule out the possibility of challenges. Individuals are free to make those, but the Government have a view as to whether those challenges would be successful. It is our view that they would not be successful because of the effect of the Human Rights Act. The Act makes it clear that religious organisations should be able to rely on their rights under article 9(1) of the European convention on human rights, which provides that:
 ''Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.'' 
The issue is one of competing rights. Article 9 of the convention is clear. Someone challenging that would have to overcome that right, which is fundamental to the Human Rights Act, and would have to establish the position of a religious body as a public authority. For those reasons, the Government are satisfied that protection exists. The Government have also undertaken in their obligations to the Church of England and the Church in Wales to work with those Churches to ensure that provisions reflect freedom of conscience for clergy members.

Andrew Selous: If one reflects on the Diane Parry case for one moment, legal opinion has it that the church in south Wales would not have won the case if the Bill had been law. At the very least, is the Under-Secretary not concerned that the limited funds of congregations throughout the country are going to be sucked away into lawyers' fees? They will not be doing the outreach work that they should be doing because of the legal minefield that is being opened up by the Bill.

David Lammy: The hon. Gentleman is not listening to me. The law is patently clear in this area. There are practical reasons for that, as well. We are talking about a small number of people. All Members in this House—certainly many have approached me—have people in their community who are transsexual in nature. I would have thought that all Members would describe them generally, as a group, as private people who have undergone a lot of agony and pain because of discrimination and prejudice generally in society. These are not groups of people who are in the business of wanting to take on faith communities. If—it is a big ''if''—that were to happen, I have set out quite clearly why I think that the hon. Gentleman misunderstands the nature of the laws as they stand.

Richard Younger-Ross: My understanding is that the right to marriage is a civil matter. Perhaps the Minister can confirm that. The right to religious marriage, however, is entirely different. There is a difficulty with the Bill because the Church is established and has a right to solemnise marriages. The clause is intended to help and we are being quite generous in saying that what this House deems to be the law we will allow a member of the clergy to disregard. Is that not a generous concession in that context?

David Lammy: The hon. Gentleman puts the point extremely well. That is what we are attempting to do where the Church has an obligation to solemnise a marriage. Where the Church does not have an obligation—the hon. Member for South-West Bedfordshire is concerned with Churches that find themselves in that situation—it has the ability to discriminate on the grounds of religion and
 membership of the Church. It is unlikely in the extreme that someone would present as part of a Church, but then not want to subscribe to the rules, behaviour and conduct of that Church.

Andrew Selous: Will the Minister give way?

David Lammy: I want to make some progress.

Andrew Selous: Very briefly?

David Lammy: I want to make some progress, if the hon. Gentleman will forgive me, because I suspect that he will want to intervene later.
 Amendment No. 45 proposes to permit disclosure when it is made 
''within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.'' 
Members of the Committee will appreciate that the terms in which the amendment has been drafted are incredibly broad. The amendment would therefore represent a huge erosion of the privacy of transsexual people and would make it possible for all sorts of people to argue in all sorts of situations that the disclosure that they made was 
''for the purpose of maintaining its procedures, practices, ethos and beliefs'' 
of a religious body. 
 We also believe that the issues can be dealt with in other ways. I will take the example raised by the hon. Gentleman. Before a transsexual person is admitted to a Church, there may well be a discussion with the pastor. We would expect that, where a Church feels strongly about admitting persons who change gender, a person seeking to be part of that congregation would provide the pastor with that information. Indeed, the hon. Gentleman set out the circumstances in which he became part of the Baptist community in his constituency. If the pastor needs to pass that information on to other members of the pastoral team, he or she would surely seek the consent of the individual. 
 Disclosure of a person's gender history is not prohibited when it is made with the consent of the person to whom the information relates. The hon. Gentleman's example illustrates the point very well indeed: he met with the pastor and the information that he gave was passed on to elders in the community. Why? It is because he consented. I suspect that consent, understanding and dialogue are a fundamental part of the Christian experience. One would expect that in whatever denomination.

Tim Boswell: Will the Minister confirm that the transgendered individual would be able to set some bounds to their consent and specify some conditions to it, including the degree to which information could be released to individuals who needed to know about it? Will he also confirm that any disclosures outwith that specific and confined consent would then and only then constitute a breach of confidentiality?

David Lammy: That is absolutely the case. My belief is that in practice the situation will not occur. I suspect that the transgendered person would expect professionalism and discretion from the pastor, priest
 or vicar to whom the information was disclosed and that the clergy would exercise the use of that confidential, private and important information in a discreet and sensible manner. So, in practice I do not think that the issue would arise, although consent is important.
 I have absolutely no doubt—in fact I know it to be the case—that clergy come across confidential, very important, delicate information every day in their communities and exercise tremendous discretion when passing it on. That is my experience of people of faith—men and women who lead their communities across the country—and I have no reason to believe that there would be any difference in the circumstances under discussion.

Andrew Selous: I understand what the Minister is saying and I agree with most of it, but will he explain how the Bill relates to the rights of someone whom a transsexual person was to marry? Would a minister of religion or a clergyman be entitled to tell that person that they were aware that their intended spouse was of a different sex? It is relevant because in the case of Samantha Kane we read that she had five lovers and did not tell any of them that she used to be a man. I admit that it is a fairly unlikely situation, but it has happened. The Minister has spoken about the rights of the transsexual person, but we would all agree—

David Taylor: Order. Interventions are getting longer and longer.

David Lammy: In the hon. Gentleman's example, the minister would not be able to disclose that information to the intended spouse. I see the hon. Gentleman smiling, as if the point has already been illustrated, but I will tell him what would happen because it is very important. The minister could speak to the transgendered person and refuse to conduct the marriage. The Bill affords the intended spouse some protection because paragraph 5 of the schedule provides for the annulment of the marriage if they enter into it without knowing that their spouse had changed gender. Fundamentally, we expect that one spouse would reveal such information, so, as the hon. Gentleman said, the situation is highly improbable.

Lynne Jones: Does my hon. Friend agree that disclosure of personal information is relevant if one is embarking on a lifetime's relationship? The likelihood of a relationship surviving if such fundamental information is not disclosed is remote. The Bill makes provision that, if somebody is not given that important information, and they marry, the marriage can be annulled. Disclosure in casual relationships is irrelevant.

David Lammy: My hon. Friend puts the point extremely well and I entirely agree with her.

Richard Younger-Ross: The question posed by the hon. Member for South-West Bedfordshire expresses tabloid fears and must be hit firmly on the head. I cannot imagine a minister, from any church, allowing such a situation to proceed. Ministers talk to people prior to marriage. They would say to them, ''You need
 to speak to your partner. You need to explain your history. Until you do so, I will not allow the marriage to go forward.'' It is clear what the duties of the clergy would be. They would not have to break the law and could resolve the issue by other means.

David Lammy: Absolutely. As I said to the Committee, it may be the case—it certainly is the case with some faith communities—that there is an application form that the couple presents in order to get married. Some Churches ask for a baptism certificate. There are many ways in which clergy can seek to ensure that the bond between the partners is a sound one and that the integrity of the process and the beliefs of that faith community are upheld.
 The concern underlying new clause 5 is that the Bill will compromise the freedom of religious organisations. Our strongly held view is that it does not do so. Throughout the Bill we have tried to strike a balance between the legitimate concerns of Churches and the need to protect the rights of transsexual people. That is not an easy task. Churches do not speak with one voice on the issue. We must be clear and honest about that. 
 I say to the hon. Member for South-West Bedfordshire that the new clause seeks the right for religious bodies to regulate their procedures and practices according to their beliefs regarding the transsexual community. Clearly there are underlying concerns that the Bill will compromise the freedom of religious organisations to restrict the participation of transsexual people in religious activities or restrict their access to facilities. The question whether a religious organisation ought to exclude transsexual people from participation in religious activities must, at heart, be a moral one. I suspect that our views on it may differ. There might not be much scope for agreement. At the end of the day, that is a moral determination for the particular faith community. 
 However, the Government can say clearly that the Bill does not extend anti-discrimination protection for transsexual people. The hon. Member for Oxford, West and Abingdon (Dr. Harris) suggested that in his helpful comments and that is the case. I state it again, because I think that there is far too much doubt in this area. The Bill does not extend anti-discrimination protection for transsexual people. We believe that we would be better placed to consider the case for extending that protection once the system of recognition is in place.

Andrew Selous: I agree with the Minister that the vast majority of transsexual people will not want to cause problems. They will want to get on with the religious bodies that they join. We are talking about only a vexatious minority, as in the Diane Parry case. If what the Minister is saying is true—the legal advice that I have seen differs from that—will he give a guarantee that the Diane Parry case would still have been won by the Church in question if the Bill had been enacted?

David Lammy: No. That is because I do not believe that any Minister would do so; I could not possibly do so. We have had much debate over the past few weeks about the relationship between Ministers and our judiciary, and it is not one into which I shall enter in Committee. I will not predetermine the outcome of a particular case. However, I stand by the fact that the Bill does not extend the law in that area. Indeed, when the Joint Committee considered the issue, it was keen that the Bill should extend discrimination a little further.
 An hon. Member approached me in the Corridor and explained to me that in his constituency, a church had prescribed that a transsexual person could not enter the female toilets or attend women-only meetings. The church was concerned that the Bill might enable the transsexual person, who abides by the rules of her community, to take out an action against the church. I have made it clear to the hon. Member that that is not the case. There is currently special provision under English law for transsexuals in employment and vocational training. However, legislation does not currently go beyond that. 
 For these purposes, discrimination—not on the basis of the transsexual's identity as a woman but as a transsexual—is allowed, for the reasons that we have discussed. Many hon. Members—certainly Government and possibly Liberal Democrat Members—are concerned about that. It is being discussed and debated in Europe, so may well change in future years. However, that is the current position, and the Bill does not go beyond that.

Tim Boswell: Is the Minister saying that under the Bill, to take one side of the equation, a man may become a woman for all legal purposes, go through the process and receive a gender recognition certificate, but would not then be able to avail herself of rights as a woman that she had not previously enjoyed as a man in relation to provision of goods, services or otherwise? The Minister has produced what I think is an artificial distinction—I hope it is not—between the rights of a transsexual person in relation to employment and vocational training, and their rights as a woman after receiving a gender recognition certificate. We must be clear about that.

David Lammy: I am in agreement with the hon. Gentleman. I thought that that was the point that I was making, but if there were a slight distinction, I agree with him.
 With the conscience clause relating to marriage, the Government have shown that we are committed to working with religious organisations on the issue. That is why I suggest that the amendment be withdrawn—it is unnecessary, given the existing law—and that the hon. Gentleman engages again with the issues in the context of any further discussion about extending anti-discrimination protection. 
 On amendment No. 43, once a transsexual person's change of gender has been legally recognised, marriages contracted between a male and a female will be valid. In such circumstances, registration officers would have no legal ground on which to refuse to 
 provide the service. It would be expected that the service would be provided to the same high standards as other services. That said, it is clearly a sign of a healthy, liberal society that people's views are tolerated. There are often practical solutions to these issues, and it is expected that marriage services for transsexual people will form a very small part of the overall service provided by the registrars-general. There would be sufficient registration officers available in a particular community to avoid an embarrassing situation for the transsexual person or a registration officer being placed in a position of personal difficulty. For those reasons I am unable to accept the amendment.

Andrew Selous: I shall be brief. We have debated these issues at some length this morning as well as on Thursday afternoon and so I shall not repeat the arguments. I am grateful to the Minister for his remarks about amendment No. 43 and registrars. As he says, the issue will arise in only a small minority of cases. The fact that he envisages other registrars being able to undertake duties where some registrars may have personal difficulties is welcome. A number of outstanding issues have not been fully resolved and we will return to them on Report and on Third Reading. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That this schedule be the Fourth schedule to the Bill.

Evan Harris: I have one brief question. Sub-paragraph (8) of paragraph 2 states:
''(a) the reference in paragraph (b) of subsection (5) of this section to the relevant person's son's mother is to the relevant person's son's father if the relevant person is the son's mother; and 
 (b) the reference in paragraph (d) of that subsection to the relevant person's daughter's father is to the relevant person's daughter's mother if the relevant person is the daughter's father.'' 
Could the Minister clarify that? I know that the Minister is sufficiently well acquainted with the Marriage Act 1949 and sufficiently well briefed to do that at some point. 
 Secondly, apropos the previous debate, will he identify again for me the part of schedule 4 that provides for the annulment of a marriage on the basis of someone not being aware of the transgender status of their spouse? I thought that it was paragraph 5, although it does not specifically state that there is any non-disclosure to the spouse. Could he explain in context how that works?

David Lammy: For these purposes it is probably best that I write to the hon. Gentleman on his question about paragraph 2 and the Marriage Act 1949. If I may, I will also write to him about his second point.
 Question put and agreed to 
 Schedule 4 agreed to. 
 Clauses 12 and 13 ordered to stand part of the Bill. 
Schedule 5Benefits and pensions

Benefits and pensions

Tim Boswell: I beg to move amendment No. 27, in
schedule 5, page 28, line 15, at end insert 'provided that it shall be possible for any individual whether or not personally in receipt of a gender recognition certificate, but as a consequence of the issue of such a certificate to any person, to apply to the High Court or Court of Session for an order on the ground of detriment to his present or future income, and the court may, if it is satisfied that it is just to do so, make in relation to any person benefiting such arrangements for the reallocation of income between the interested parties as it may deem appropriate.'.

David Taylor: With this it will be convenient to discuss the following:
 Amendment No. 20, in 
schedule 5, page 32, line 11, at end insert— 
 'Continued payment of benefit 
 13A In any case where the Secretary of State judges that the ending of an entitlement to state benefit under this Schedule may give rise to hardship or to excessive administrative cost he may provide for the continuing payment of benefit as if the certificate had never been issued.'.

Tim Boswell: This may be somewhat easier territory for the Committee. We have had a fairly full rehearsal of the possible implications on the benefits of third parties from changes in gender. I do not intend to repeat that, but I want to explain to the Under-Secretary of State for Work and Pensions, who I suspect will respond to this point, the intentions of the two amendments.
 Amendment No. 27 would tack on a provision, which is meant to be a general rider to part 3 rather than part 2 of schedule 5, that any party, not necessarily a party to a marriage involving a transgendered person, should be able to take any problems with occupational pensions or benefits to a court if an individual has been granted a gender recognition certificate. I have not thought the amendment through fully and that is the reason for its general nature. 
 The amendment would apply to persons not necessarily involved in a marriage, but it would not reopen issues already discussed about persons who might lose their rights from a third party, typically the trustees of an occupational pensions scheme, because of the annulment of a marriage. We are talking about a situation in which the occupational pensions pot is fixed—typically that would be in payment, but it would provide for notional future payments—and an individual, whether a spouse or a dependant, feels that they may lose out under the provisions of the Bill. 
 I have no difficulty with clause 18, which covers the ability to go to court in relation to a will for an order where expectations have been defeated, and to say to the court, ''This is not fair to me and it wasn't envisaged at the time the will was produced.'' I have tried to adapt that thinking to a situation in which issues arising from an occupational pensions scheme might also affect a third party. The intention is not to put an additional obligation on the trustees of the pension fund, but to provide that if such a sum is available, it might be re-ordered between the parties to take account of the circumstances. 
 Amendment No. 20 refers to state benefits and includes some of the underlying thinking of the modest but entirely acceptable amendment No. 53 tabled by the hon. Members for Birmingham, Selly Oak (Lynne Jones) and for Oxford, West and Abingdon, which will be discussed separately. Under the general approach of the Bill, which is that if persons change gender, their rights and obligations under the benefits system change commensurably, there may be difficulties at particular points in the process. I have singled out two such difficulties and will deal first with the simpler issue of administrative costs. 
 If a long-awaited gender recognition certificate were granted to an individual, who was a woman in law, three weeks before her 65th birthday, she would have received a pension as a woman, would be disqualified when she became a man, and would lose her benefit. The period of time might be longer, but switching from one system of payment to another would be expensive. The Minister will probably remind the Committee that there are provisions under the Social Security Act 1998 for not bearing down on people or recovering sums that are disproportionate to the amount lost by the benefits system for paying benefits for another three weeks rather than changing the system because the individual had become a man and would be entitled to a pension in their own right. I would be grateful if the Minister could clarify that situation. 
 The second difficulty relates to the repayment of accrued benefit. It is evident from the Committee's sittings that most transgendered people are well aware of their situation and will have made inquiries before taking what is a radical step in their lives. However, there could be a situation of inadvertence in which the drafting of the Act might not be familiar to them, and they might not have realised that they stood to lose a significant amount of benefit. For example, they might not have notified the national insurance system and they might continue to receive the benefit, but when this measure becomes law, somebody might say, ''Well, we've now found out that you've become a man.'' One can imagine that one part of the benefit system might not catch up with the gender recognition side of it. It might not be clear on the form that one needs to declare it as a material change of circumstance. Somebody might be overpaid and that could give rise to considerable difficulties. I hope that the Minister will address that in the spirit in which it is offered. 
 There is another relevant point, regarding hardship. In another place, Ministers made it clear that the provisions on state benefits in schedule 5 were substantially about the difference between ''the pension'' for persons over 60, and that they reflect the historic anomaly in the system, which will be ironed out. The pension system will eventually be proximate for men and women over 60, but as we are not yet at that position, men over 60 are not entitled to their pensions. However, as Ministers said in another place, they are they are entitled to a minimum income 
 guarantee, so that there should be no hardship. Under the proposals, when someone changes gender, their obligations and rights in relation to the benefit system will change to those of their new gender. Within the clarity and coherence of those proposals, there could be hard cases, and our intention, with this amendment, is to enable Ministers to use an administrative solution to meet them in the least complicated way possible. 
 It would be helpful if Ministers could tell us that there will be no such problem because it will be picked up by the minimum income guarantee, or that it will be possible, on the administrative side, not to plough on if there is only a week or two to pay, or if there are some overpayments or arrears that there should not be. Will the Minister also respond to the point on occupational pensions?

Maria Eagle: It is refreshing to hear the hon. Member for Daventry say that the range of pensions and social security benefits in schedule 5 are simpler than those involved in the previous group of amendments. That says more about the previous group of amendments than it does about the social security system. None the less, I was encouraged to hear that he is sufficiently au fait with every possible permutation in the benefit system to have the confidence to say that.

Tim Boswell: Far be it from me to accuse the Minister of implying that I was being arrogant. I was trying to say that I am confident that she—as admirably briefed by her excellent Department, as I am sure that she is—will come up with the answers. My intention in using a somewhat broad-brush, layman's approach, and with my past amendments, was to introduce this issue, and to point out that there might be some problems. I look forward to her full and sufficient explanation of any problems, and their resolution.

Maria Eagle: I hope that I can oblige. I was in fact complimenting the hon. Gentleman on his erudition. Obviously, he is feeling a bit touchy today.
 First, I will set out my understanding of what his amendments would do. Amendment No. 27 would put in place a safeguard to prevent people from suffering any financial loss as a result of the gender recognition process. In his introduction, the hon. Gentleman made it clear that he is talking mainly about private pensions, although one would not necessarily work that out from the place in which the amendment would be placed, as it would appear to cover the whole of schedule 5. However, I think that the hon. Gentleman will accept that that is a minor point, as these are probing amendments. 
 The amendment would also allow the High Court or Court of Session to redistribute money from a person who gains as a result of a gender recognition process to a person who loses as a result of that process. The effect would, in practice, be to treat individuals differently from those of their acquired gender. The amendment would also involve the courts in a social security arena 
 that they normally avoid and in a manner that could cause me a worry or two, as a Minister with responsibility for some social security issues. 
 Amendment No. 20 would prevent those who obtain a gender recognition certificate from facing hardship as a result of being in receipt of that certificate. It also seeks to prevent excessive administrative costs resulting from the issue of the certificate. Again, that would treat some with a gender recognition certificate according to their birth gender instead of their acquired gender. The amendment would also treat some individuals with a gender recognition certificate differently from other individuals with a certificate, by making special provision. 
 The aim of the Bill is to give transsexual persons the right to live legally in their acquired gender, with proper recognition. Once individuals are recognised in a gender, the Bill treats them for all purposes according to the acquired gender, not the birth gender. That is the Bill's fundamental principle. The purpose of the schedule is to put that principle into effect and to ensure that transsexuals are given the same rights to social security, benefits and pensions to which others of their acquired gender are entitled. The schedule also provides that those who obtain a gender recognition certificate be treated according to that certificate. 
 Given that men and women have different rights to pensions and benefits, some individuals may gain financially as a result of legally changing gender, while others may lose. That is part of the gender recognition process. It is right that people realise that their decision to gain legal recognition in their acquired gender may have such consequences. I am sure that most such individuals have thought about those issues extensively. We do not want to rewrite a person's life history. We seek to give a transsexual person who has changed their gender the same status as other members of the acquired gender from the time of legal recognition. 
 If the Government created special provisions for those who legally acquire a new gender, those individuals would be set apart and treated differently from those who are born into that gender. Treating individuals according to their birth gender for some purposes and their acquired gender for others could also lead to inconsistency and confusion. There are problems with amendment No. 20 for that fundamental reason. I hope that the hon. Gentleman can understand that the very purpose of the Bill is to try to avoid such problems. 
 We intend to provide comprehensive information. The hon. Gentleman may understand the pension and benefit system well, but he has had to deal with it in his duties in the House of Commons. One cannot expect people outside the House to take the same level of interest. It is important that comprehensive information about how an individual might be affected should be available. It is important also that people should be able to make a fully informed choice about whether they wish to apply for a gender recognition 
 certificate and, if so, when it would be best to do so. For example, it might be advantageous to wait for a year or two. The situation will vary from case to case. 
 Concerns were expressed on Second Reading about the situation of former spouses of individuals who apply for a gender recognition certificate. The amendment seeks to provide financial safeguards for them as well, as the hon. Gentleman said. As I believe we said then, however, appropriate mechanisms are already in place to deal with the benefit and pension situations in which people might find themselves, such as pension sharing on divorce. The amendment seeks to elevate the principle of eliminating all financial detriment over the Bill's inherent principle of always treating an individual according to their acquired gender after legal recognition. 
 There is more flexibility in the system than some perhaps realise. It is possible for a spouse, for example, to substitute their national insurance contributions record for that of their former spouse where that might benefit them. Unless they remarry, that person will be able to claim a category A pension on the basis of the spouse's record and any additional contributions that they make when they reach a pensionable age. That is likely to be more generous than if had they stayed married and claimed a category B pension based upon their spouse's contribution record. That is because the substitution provisions assume that people will live in separate households following divorce. The small category of people whom we are discussing—those who divorce because they need to do so to get the gender recognition certificate—will want to stay together. That is the point of the amendments proposed by my hon. Friend the Member for City of York (Hugh Bayley) earlier in our consideration of the Bill. 
 If the former spouse of a person who has gained a gender recognition certificate is not of pensionable age, they will be able to seek state benefits such as jobseeker's allowance providing that they are eligible to do so. They will be treated in the same way as anybody else following a divorce. They will get no special treatment. We do not believe that, under the provisions of the Bill, that is appropriate. 
 Courts do not get become involved in determining the allocation of resources in the social security context as amendment No. 27 suggests that they should. One would be hard pressed to find any social security Minister who would do anything other than recoil in horror at the thought that they might. That is a role for the Government and Parliament and not for the courts. On that basis, I would be reluctant to accept the amendment. 
 Although it is true that some transsexual people who have gained recognition in their acquired gender may be divested of certain benefits, it is likely that they will gain entitlement to other benefits in their place. The fiscal impact is, therefore, likely to be minimal. I do not believe that there will be individuals who face severe hardship, because other parts of the social security system will be able to provide assistance. We should 
 therefore ensure that the principle of equal rights and recognition in the acquired gender is adhered to for all purposes.

Tim Boswell: Over and above the example I cited to her—the minimum income guarantee—can the Minister give any specific examples in which one benefit can substitute for another in a helpful way?

Maria Eagle: I can. There are a number of different sets of circumstances. If somebody wants to put some to me, I am happy to try to explain what benefits would be available. The social security system has a safety net and it is there to make sure that people do not suffer severe financial hardship. We do not believe that they would.
 The hon. Gentleman made some points about overpayments and what would happen if, by inadvertence, somebody did not report a change in circumstances. There is a general duty in the social security system to report changes in circumstances that may lead to a change in benefit entitlement. That is something that every recipient knows. It is stated on every order book, leaflet and piece of information. 
 As I have already said to the hon. Gentleman, we will be providing extensive guidance and information about financial and benefit implications to those contemplating gender recognition certificates. We hope to be able to make it clear at that time that the circumstances need to be reported in respect of any benefit entitlement. Where there is inadvertence, and no clear attempt to deceive, the Department takes a sensible view of whether to pursue overpayments. However, we have a general duty to the public purse to pursue overpayments where appropriate. The Department has a system to evaluate each case on its merits and to decide whether overpayment should be pursued. 
 The hon. Gentleman referred to one part of the Department not knowing what another part does. That has been known to happen every now and then. The Department takes the view that, where that has happened, and where there has been some fault on our part that has resulted in an overpayment, it would not be appropriate to pursue it. Each case is considered on its merits. That does not take away the fact that each recipient of social security benefits has a duty to ensure that they report changes of circumstance that might affect their benefit entitlement. I hope that the hon. Member for Daventry will be satisfied with that explanation.

Tim Boswell: Broadly, that is the case. I am grateful to the Minister for explaining the situation. Sometimes in moving amendments, I gain not by writing measures out of the Bill, but by the type of reply that the Minister gives. On cue, she has done exactly what I hoped that the amendments would trigger, which is to explain the arguments, particularly those about discrimination between categories of persons in their acquired gender compared with persons who were born in that gender.
 I understand her concerns about that and about the integrity and operation of the social security system. I am not dogmatic; they have been useful probing amendments to which we have received a more than adequate response.
 I am particularly grateful that the Minister has said that there will be full information for persons who are contemplating gender reassignation and application for a certificate. It is important that the general information sent to all benefit holders or people who are, for example, about to receive their pension entitlement, makes clear that the issuing of a gender recognition certificate is a material change in circumstances. 
 I am sure that the Minister will want to produce a package for this specific area, and for the integrity of the system it is important that information is provided, as it is for entry to hospital and in other circumstances of general notification, so that people—or, perhaps more typically, the partner—may pick it up and make the necessary inquiries. I am satisfied with the Minister's response and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Lynne Jones: I beg to move amendment No. 53, in
schedule 5, page 29, line 37, at end insert—
 '(2A) But sub-paragraphs (1) and (2) do not apply to a person who was aged not less than 59 years on the date of Royal Assent of this Act and who was a woman immediately before the certificate is issued, and the rights of that person to a Category A retirement pension are to be decided as if the certificate had not been issued.'.
 The amendment is designed to deal with the plight of a very small number of female to male transsexual people who are either currently retired and in receipt of category A pensions or will retire before the Bill is enacted. As the hon. Member for Daventry has pointed out, many of the situations in the schedule arise because of the differential age of retirement between men and women. In moving towards a common retirement age of 65, transitional arrangements allow people affected to plan for their future. I will be one of the first cohorts of women affected by it; my retirement age will be 61 rather than the age of 60 for women who are older. 
 The amendment asks for similar transitional arrangements for a very small group of people who would otherwise suffer undue hardship. We are talking about a handful of people. Stephen Whittle, vice-president of Press for Change, founded the FTM network in 1989. It has 800 members who are female to male transsexual people. Of those 800, only 13 are aged 60 to 65; three will be 60 in 2004; and a further three will reach 60 in 2005. It is therefore estimated that no more than 30 men will be affected by the amendment. 
 Stephen Whittle managed to contact seven of the 13 individuals who are retired. Of those, six are working full or part-time, but five are earning less than £9,000 a year gross, and one is earning less than £4,000 a year. One man has recently been able to carry out work for the first time in many years as a result of society's attitudinal changes, the protection of the law following 
 P v. S and Cornwall county council and the fact that he continues to receive his category A pension, which has permitted him to take on low-paid work in the voluntary sector. 
 If those people must choose between continued receipt of their pension and benefiting from their human rights as provided for under the Bill, they will be placed in difficult financial circumstances. One of them said that it would be the difference between a frugal life and a life of penury. Of course, pension credit would not help them, because to benefit from that means-tested benefit they would have to give up their jobs. 
 The Under-Secretary of State for Constitutional Affairs said in the first sitting: 
''transsexual people do not choose their gender identity. It is a long, difficult and painful experience for them to acquire a new gender, and one which may result in the loss of friends, family and even employment.''—[Official Report, Standing Committee A, 9 March 2004; c. 17.] 
The Minister clearly understands the plight of transsexual people. He understands that many people will have lost employment opportunities as a result of the discrimination that they suffered. For example, people will have failed to apply for jobs or will have withdrawn their applications when demands to see their birth certificate were made. 
 That small group consists of people who have suffered all their lives. Some underwent their transition more than 30 years ago, but have not had full civil rights in that time, and have suffered discrimination that has affected them into their retirement. Now they could be asked to lose their small state pension. 
 I am asking for something that will affect only a very small number of people. What I propose is, in effect, similar to the transition in respect of the equalisation of the age of retirement; it would allow for phased implementation and set no new precedent, because it would be time-expired and would not apply to future cohorts. The amendment would affect those who have been disadvantaged by the accident of belonging to an age group that did not allow them to plan for their retirement. Many have been forced against their will to retire at 60—six of the seven people in the example that I gave were in that position. 
 The amendment has very small financial implications and would allow the small number of people in question to avoid a predicament in which benefits that they now receive would be likely to be withdrawn. It is a long-standing principle of the social security system that people currently in receipt of benefits should not have them withdrawn.

Evan Harris: I strongly support the hon. Lady's comments and have signed her amendment. Does she agree that the key point is that it cannot be right for a small number of people in the situation that has been outlined to have to choose whether to gain access to the rights granted to them by the European Court of Human Rights, given that it appears that they may be forced into a much more difficult financial situation—perhaps even penury, relative to what they would have had if they had kept their original gender?

Lynne Jones: That is precisely the point of the amendment. I wanted to draw attention to the principle of transitional arrangements and of not withdrawing benefit entitlement from someone currently in receipt of such a benefit. I hope that the Government will accept that the amendment is a reasonable and compassionate provision for a small number of people.

Maria Eagle: I begin by congratulating my hon. Friend the Member for Birmingham, Selly Oak on the assiduous care with which she has followed legislation in general and this Bill in particular to ensure that this small group of people is properly treated. However, there are difficulties with the amendment, which I shall set out.
 My hon. Friend made it characteristically clear that the amendment deals with the state pension entitlement of the small number of female to male transsexual people who are over the age of 59, and would enable them to retain their category A retirement pensions. As she said, the purpose is to ensure that they are entitled to that pension at the appropriate age and rate for women instead of the appropriate age and rate for their acquired gender. As she helpfully told us, we are talking about a small group of people, and I have no reason to doubt her figures, which I am sure are as accurate as any that could be produced. 
 Under the amendment, however, certain female to male transsexual people would undoubtedly be treated differently from other people of their acquired gender, because they would be able to claim their category A retirement pension at the same age as women rather than men once they were recognised in their new gender. I make no comment on why my hon. Friend has tabled the amendment, but if we accepted it we would end up treating a very small group of men differently from all other men. 
 My hon. Friend is very knowledgeable about the social security system, but I often think that it is easy for outsiders who do not have to deal with it to say, ''Make an exception for this small group of people. It would be beneficial to them.'' I accept that, but it is harder to make exceptions for small groups than for large ones in the social security system, because that leads to administrative complexities. 
 My hon. Friend and the hon. Member for Daventry referred to the precedent of the transition to an equal age of entitlement to state retirement pensions. As hon. Members will know, that process will begin in 2010 and be completed in 2020, by which happy date Social Security Ministers will no longer have to deal with the difficulties thrown up by gender differences in entitlement. I assure hon. Members who have not had to deal with such problems—the one or two who have done so, including my hon. Friend the Member for City of York, who is not present, will know this—that they are among the most difficult that a Social Security Minister must face. Although we all look forward to the happy day when equalisation occurs, the transition 
 to an equal age for general state retirement entitlement is provided for in law by a derogation from the directive, and we cannot use that derogation in the way that my hon. Friend suggests to ensure that the small group of individuals that we are discussing does not lose out. 
 The Bill does not treat such individuals differently from anyone else of their acquired gender, but that would be the effect of the amendment. The creation of such a special category raises the question of whether those affected would seek to be treated as a woman for some purposes and as a man for others. After all, the Bill is about equality and legal recognition in the acquired gender. In deciding when and whether to seek legal recognition, the person concerned will have to take all the implications into account. In that regard, I hope that the comprehensive information that we shall make available will ensure that they at least have proper information about those implications. There will be guidance. 
 Sadly, those who are most likely to lose out as a result of the processes are female to male transsexual people who have gained recognition and therefore might be divested of their retirement pension or might not be able to claim their retirement pension as soon as they otherwise would have done. However, they will be entitled to other benefits, such as jobseeker's allowance or pension credit, and we believe that the fiscal impact is likely to be minimal. 
 My hon. Friend talked about means-tested benefits. Pension credit entitlement gives single people at least £102.10 a week, and couples at least £155.80. That is without the savings credit, which of course comes in only after reaching the age of 65. However, we are talking about the guaranteed credit element of the pension credit. That would certainly provide proper recompense for many people. 
 It is likely that a female to male transsexual person aged between 60 to 64 on a low income would already be eligible for pension credit and could already be receiving it on top of the state pension. For example, a female pensioner aged 62 whose only income was the basic state pension of £77.45 a week would be eligible for £24.65 a week pension credit, to bring her weekly income up to the guaranteed minimum of £102.10 a week. If that person were to change gender at the age of 62, he would lose entitlement to the state pension, but assuming no other changes in circumstances, he would be entitled to £102.10 a week in pension credit. There would be no financial loss. A person over the age of 60 is guaranteed a minimum income, regardless of whether that is paid by way of a combination of state pension and pension credit or by pension credit alone. 
 My hon. Friend has characteristically identified an even smaller group of people who could be adversely affected. That is female to male transsexual people in low-income jobs who would not be able to claim pension credit, although they can currently get their 
 state pension. Although those people might become financially disadvantaged on gaining recognition in their acquired gender, their situation would not be any different to that of other men in an equivalent situation. They may also qualify for working tax credit if they meet the conditions for entitlement. It would depend on individual circumstances.

Lynne Jones: My hon. Friend says that such individuals would be no worse off than other men. However, the point that I was trying to make with the amendment is that those individuals have suffered extensive discrimination throughout their lifetimes, which has prevented them from making the most of their employment or earning opportunities. Now that they have some chance of recognition and respect in their acquired gender, they have to choose between that and losing out financially. Other men have not had to face that difficult lifetime.

Maria Eagle: I understand what my hon. Friend is saying, and I accept that for a small number of people that problem is thrown up by seeking a gender recognition certificate at that particular age. However, the principles of the Bill are such that it is not easy—and I would argue that it is not desirable—to make exceptions, even in difficult cases, for such a small group of people, despite the fact that there has been a difficult history of employment.
 There is no doubt that the losses would be minimal. Most people would be able to get pension credit. If their employment history were such that they were quite poor, they would be entitled to pension credit and the possibility of a higher pension at age 65. The social security system provides for people who are likely to face severe financial hardship not to do so and helps to alleviate that. Those who are working, perhaps in low-paid jobs, would not be entitled to pension credit, but the working tax credit is available if there is an entitlement. 
 We do not believe that there would be extensive examples, or even a small number of examples, of people losing out financially in a way that would make it sensible for us to amend the Bill. I know that my hon. Friend feels very strongly about the matter and may not agree with that analysis. None the less, it is the Government's analysis, and I hope that she will understand—even if she does not accept—our reasons for believing that the amendment should not be accepted.

Lynne Jones: I appreciate what my hon. Friend the Minister has said. She will understand that her remarks are not entirely unexpected, and that I will raise the issue again later in our consideration of the Bill. For the moment, however, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Schedule 5 agreed to. 
 Clause 14 ordered to stand part of the Bill. 
Schedule 6Sex discrimination

Sex discrimination

Question proposed, That this schedule be the Sixth schedule to the Bill.

Evan Harris: I raise an issue that was debated briefly in the House of Lords. I, too, hope to be brief. The Joint Committee on Human Rights also discussed the issue in relation to discrimination law and the Bill's related provisions.
 The Government's approach is extremely minimalist, and we should not allow the Bill to go through Committee without getting the Government to justify it. We should also ensure for the record that the Minister expresses his confidence, which I am sure he will be willing to do, that the Government will be able to see off any challenge under the Human Rights Act 1998, particularly in the light of the eight claims made under article 14, article 8, and article 2 of protocol 1 on the right to education. 
 I will briefly outline as best I can at this time of the morning the issues relating to discrimination. I will also talk about the Government's approach and why it is so unsatisfactory. There are two separate issues. The first is whether the transsexual person would be protected against discrimination on the ground of 
 their new sex or gender. The second is whether they would be protected from discrimination on the ground that they were transsexual. The Joint Committee report dealt with those issues very well. I pay tribute to the hon. Member for St. Helens, South (Mr. Woodward) who has also worked hard on these issues. 
 We have discussed clause 9 and the provision that makes it clear that we mean ''sex'' where the Bill says ''gender''. It is therefore quite clear that under the Sex Discrimination Act 1975 in which the term ''sex'' is used, transsexual people are protected from discrimination against their new gender or sex. What is more difficult is the question of discrimination on the ground that a person is transsexual. 
 Before we adjourn, it is worth considering the equal treatment directive and the impact that the case of P v. S and Cornwall county council had on our domestic law. The Sex Discrimination Act protects people from sex discrimination in employment, vocational training, education, housing and the supply of goods and services. Thanks to the Liberal Democrats, the equal treatment directive is one of the few areas of British law— 
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half past Two o'clock.